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| Babar Sattar, Columnist, Lawer |
The foremost conspiracy theory doing the rounds is that a
government of technocrats is in the offing, and will be installed by utilising
the Bangladesh Bangladesh
Javed
Hashmi had claimed during Dharna I that such a plan was afoot. The Supreme
Court headed by the then Chief Justice Nasir ul Mulk had considered the
election rigging challenge and dismissed it saying there was no basis to
conclude that Election 2013 was stolen through an organised conspiracy. Given
that the Bangladesh Pakistan
There
is no provision in our constitution permissive of the Bangladesh Bangladesh Pakistan Bangladesh
A
census has many critical purposes. One of them is that population count is used
to allocate seats between federating units and to delimit constituencies.
According to Census 1998, Pakistan
If
Election 2018 is held on the basis of seat allocation and delimitations resting
on Census 1998, such election will be vulnerable to a constitutional challenge.
In a democracy the ‘one person, one vote’ principle ensures political and legal
equality. A federating unit gets representation in parliament on the basis of
its respective population. According to the preliminary results of Census 2017,
the overall share of Punjab in Pakistan Punjab in parliament
should also be reduced proportionately.
The
size of constituencies ought to be comparable to uphold citizens’ right to an
equally ‘weighted’ vote. If constituency A comprising 100,000 citizens elects
one representative and constituency B comprising 200,000 citizens also elects
one representative, citizens of constituency B will stand disenfranchised due
to vote dilution. A fair delimitation process needs to guard against
gerrymandering – that is, constituencies must not be drawn in an artificial way
to bunch together and ‘waste’ the votes of a particular group likely to vote a
certain way.
The
bottom line is that if Election 2018 is held on the basis of Census 1998, it
will be an open invitation to those interested in disputing results or
disrupting transfer of power to the next elected government. And if Election
2018 is to be held on the basis of Census 2017, we are running late.
Article
51(3) of the constitution specifies the distribution of 332 seats in the
National Assembly between the federating units (excluding 10 seats reserved for
non-Muslims). Article 51(5) then states that, “seats in the National Assembly
shall be allocated to each Province, the Federally Administered Tribal Areas
and the Federal Capital on the basis of population in accordance with the last
preceding census officially published.”
The
media has so far been focused on the “officially published” bit of Article
51(5). But can seats be allocated on the basis of Census 2017, even if
officially published, without amending Article 51(3)? Article 51(5) doesn’t
state that it will override 51(3). And 51(3) doesn’t say that seats will
automatically stand adjusted on the basis of allocations made under 51(5). This
might be a lacuna in the text. But it is one that will require judicial
interpretation or else it can be exploited.
Let’s
now come to Elections Act, 2017 and work backward on timelines.
Section
14 requires that the ECP, “shall, at least four months before the general
election is due to be held on expiry of the term of an Assembly, prepare a
comprehensive Action Plan specifying all legal and administrative measures that
have been taken or required to be taken in respect of the election”, including,
“delimitation of constituencies”, “revision of electoral rolls”, “preparation
of constituency-wise list of polling stations and list of polling personnel”,
etc.
If
Election 2018 is due by August 5, this action plan must be ready by April.
Section 17(2) mandates the ECP to delimit constituencies “after every census
officially published.” If such delimitation is to be undertaken on the basis of
preliminary census results, Section 17(2) and Article 51(5) of the constitution
both need amendment. After such amendment or official publication of results,
the ECP is to publish a preliminary report on delimitation (after holding
inquiries, considering representations, summoning witnesses and recording
evidence).
A
30-day period is prescribed after publication of the preliminary report to
invite public representations in respect of such report, after which the ECP is
to publish a final report after considering representations within 30 days of
the last date fixed for receipt of representations. In other words, if the ECP
were Hercules with magical abilities and who burnt the midnight oil, it would take it at least a month
to undertake preliminary delimitation after receipt of census results, and then
two further months for receipt of representations and preparation of the final
report.
This
brings us to the preparation of electoral rolls, which logically needs to
happen after the delimitation process is complete. Under Sections 28, 30, 34
and 35 of the Elections Act, the ECP is required to publish the preliminary
electoral roll for a 30-day period, followed by a 30-day period for receipt of
complaints, which is followed by a 30-day period for corrections and publication
of the final roll. In view of these timelines, the ECP needs three months to
delimit constituencies and another three for roll preparation. And all this
needs to happen by April 5, 2018 .
Let’s
say the April deadline is recommended but not mandatory. Section 39 states that
there can be no change made to electoral rolls 30 days before the term of the
assembly is about to expire. This makes May
5, 2018 the absolute cut-off date. In short only if the ECP initiates the
delimitation process by November 5 could it possibly complete delimitation and
preparation of rolls by May 5. So we have about two weeks to address the
ambiguity in Article 51 and amend Article 51(5) and Section 17 to initiate
delimitation on the basis of the preliminary census data.
The
ECP has to undertake delimitation on the basis of the latest census. The tenure
of assemblies expires on June 5. If delimitation and preparation of rolls
hasn’t been undertaken on the basis of Census 2017, elections won’t be possible
within the prescribed 60-day period. But Article 254 of our constitution states
that, “when an act or thing is required to be done within a particular period
and it is not done within that period, the doing of the act or thing shall not
be invalid or otherwise ineffective by reason only that is was not done within
that period.”
Planning
to hold Election 2018 on the basis of Census 1998 or not taking all legislative
and administrative measures to ensure that delimitation and preparation of
rolls on the basis of Census 2017 take place prior to the installation of the
interim government is tantamount to inviting a roll-out of the Bangladesh
